In January 2007, the government of Ontario introduced a suite of legislative reform proposals to facilitate brownfield redevelopment. These reforms received Royal Assent on May 17, 2007 as part of the Budget Measures and Interim Appropriation Act, 2007 (Bill 187).
The proposed amendments to Ontario Regulation 153/04 would implement the balance of the legislative reforms made to the Environmental Protection Act (EPA) and the Ontario Water Resources Act in 2007; would update the site condition standards to reflect current science; and would introduce a streamlined modified generic risk assessment for brownfields sites.
The proposed amendments to Ontario Regulation 153/04 would facilitate the return of brownfields into productive land uses.
The proposed amendments include a package of interconnected elements:
- Enhanced Record of Site Condition (RSC) Integrity
- New, clear rules for completion of Phase One and Phase Two environmental site assessments for brownfield redevelopment.
- A regulated timeline to support the submission and filing process for RSCs (proposed 30-day Notice Period for all RSC submissions).
- Liability Protection and Off-Site Migration from the RSC Property
- A Streamlined Risk Assessment Approach
- Strengthened Soil and Ground Water Site Condition Standards
- Complementary Technical Regulatory Amendments
- Transition Provisions
1. Enhanced Record of Site Condition (RSC) Integrity
Under Part XV.1 of the EPA, a property owner may file a RSC in the Brownfield Environmental Site Registry (the Registry) if it is prepared in accordance with the Regulation and applicable standards are met for soil, ground water and sediment. The proposed amendments to Ontario Regulation 153/04 would clarify the rules pertaining to the RSC review process for submissions and environmental site assessments (ESAs).
Proposed RSC Review Process
Under the proposed regulatory amendments, the Ministry of the Environment (the ministry) would conduct an administrative check of a RSC within a 30 business day regulated time period called the ‘Notice Period”. Upon completion of the administrative check, the ministry would send the property owner one of the following:
- Written notice that the RSC cannot be filed because it has not been completed in accordance with the regulations.
- Written notice stating that the Director intends to conduct a review in relation to the RSC before the RSC can be filed on the Registry.
- Written acknowledgement, specifying the date that the RSC has been filed on the Registry.
A notice given under section 1 (above) would identify the manner in which the RSC has not been completed in accordance with the regulations.
If a notice were given under section 2 (above), the Director would conduct a review and would provide notice to the owner stating that either a) a defect prescribed by the regulations had been found in relation to the RSC; or b) that the RSC had been filed on the Registry.
Proposed Environmental Site Assessments (ESA) Requirements
[P.9 (Parts VI, VII, VIII); p.46 Schedule D; p.73 Schedule E of amending regulation]
The proposed regulatory amendments set out clear rules for the completion of Phase One and Phase Two ESAs. It is intended that these ESA objectives and requirements will assist Qualified Persons (QPs) to understand the ministry’s expectations for the completion of RSCs.
Phase One ESA
A Phase One ESA is an assessment of a property conducted in accordance with the regulations by, or under the supervision of, a QP to determine the likelihood that one or more contaminants have affected any land or water on, in or under the property.
The new, proposed Phase One ESA provides preliminary information about environmental conditions on the property; a determination of the need for, and where necessary, a basis for carrying out any Phase Two ESA. Under the proposed new requirements, a Phase One ESA would be made up of the following six components: a records review; site reconnaissance; interviews; evaluation of information collected; preparation of a written report; and submission of the report to the property owner.
In addition, a Phase One ESA would include:
- The identification of recognized environmental conditions by a QP; and
- The preparation of a preliminary conceptual site model (CSM).
Recognized environmental conditions would be determined by the QP through the identification of past or present uses and any potentially contaminating activities (both within the property and within a minimum defined study area of 250 metres surrounding the property) that may be contributing to recognized environmental conditions on the property.
A preliminary CSM would be prepared by a QP and presented in the Phase One report (in tabular and narrative form supplemented by cross-sections and maps) and would include:
- A site plan of the property;
- A description of contaminants related to potentially contaminating activity and uses;
- Surface and sub-surface structures;
- Geological and hydrogeological conditions on the property;
- Contaminant transport pathways; and,
- A description of receptors.
The Phase One ESA would result in one of the following two conclusions:
a) A Phase Two ESA is not required and a RSC may be submitted to the ministry for filing on the Registry; or
b) A Phase Two ESA is required.
Phase Two ESA
A Phase Two ESA is an assessment of a property conducted in accordance with the regulations by, or under the supervision of, a QP to determine the location and concentration of contaminants on the property. A Phase Two ESA is mandatory under the following circumstances:
a) If the property is used, or has ever been used, in whole or in part for an industrial use or any of the following commercial uses: a garage; a bulk liquid dispensing facility, including a gasoline outlet; or for the operation of dry cleaning equipment
b) If a potentially contaminating activity is identified on, in or under the property during the Phase One ESA (as proposed in Table 2 of Schedule D).
Under the proposed regulatory amendments, a Phase Two ESA would be made up of the following five components: planning the site investigation; conducting the site investigation; interpretation and evaluation of the information gathered; preparation of a written report; and submission of the report to the property owner.
Proposed requirements include:
- A sampling and analysis plan.
- Soil, sediment and ground water sampling and analysis.
- Mandatory ground water sampling under certain situations.
- Reporting requirements related to remediation.
- Refined CSM.
When planning a site investigation, the QP would prepare a sampling and analysis plan in accordance with regulatory objectives and requirements. This plan would require assessment of the property and all media where contaminants may be present including each of the locations associated with a recognized environmental condition and any contaminants identified, up to the time of sampling, during the Phase Two ESA.
Soil, sediment and ground water would have to be sampled, by or under the supervision of a QP, and analyzed by an accredited laboratory from all areas where a contaminant may be present at a concentration greater than the applicable site condition standard.
Under the proposed requirements, the collection and analysis of ground water samples from Phase Two properties would be mandatory for certain situations including:
- All locations where a contaminant may be present at a concentration greater than the applicable site condition standard;
- Any Phase Two property that is used or has ever been used in whole or in part for an industrial use or for any of the following commercial uses: as a garage; as a bulk liquid dispensing facility, including a gasoline outlet; and for the operation of dry cleaning equipment.
Details regarding actions taken to reduce the concentration of contaminants on the property, including confirmation sampling, would be required in the Phase Two ESA report.
A refined CSM would be required during a Phase Two ESA and would be developed by updating the preliminary CSM with information obtained during the Phase Two ESA. The refined CSM would be presented in the Phase Two report in tabular and narrative form supplemented by cross-sections and maps and would include:
- A site plan of the property.
- A description of the physical setting of the property.
- A description of contaminants present at concentrations greater than the applicable site condition standard.
- Information pertaining to sources, distribution, transport pathways and receptors.
A revised draft “Protocol for Analytical Methods Used in the Assessment of Properties Under Part XV.1 of the Environmental Protection Act (2008)” is attached for stakeholder comment.
Registry and RSC Form
The brownfields regulatory reforms will require changes to the Registry interface and will involve changes to the RSC form. The administrative amendments needed to accommodate these changes will be made before the brownfields regulation is implemented.
Qualified Person and Conflict of Interest
[P.5 (S.4) of amending regulation]
The proposed regulatory amendments introduce new conflict of interest requirements for QPs. Under the proposed amendments, a QP or his or her employer holding a direct or indirect interest in a property that is the subject of a RSC, risk assessment, or ESA would not be able to:
- Conduct or supervise a phase one or phase two ESA;
- Complete the certifications that must be completed by a QP in a RSC in respect of a property; or
- Prepare or supervise a risk assessment.
2. Liability Protection and Off-Site Migration from the RSC Property
[P.17 (Part VIII.I); p.34 (Part V) of amending regulation]
The proposed regulatory amendments clarify the rules for loss of regulatory liability protection should contaminants migrate off the RSC property. Building on the limited statutory liability protection currently provided under Section 168.7 of the EPA, Section 168.7.1 now provides the framework for this optional liability protection according to the rules set out below. The optional protection would not be available to persons who had caused or permitted discharge of the contaminants in the first place nor are they available to property owners who file RSCs prior to Section 168.7.1 coming into force.
The proposed amendments specify what concentration of contaminants migrating off-site would result in loss of liability protection for a property owner who chooses to undertake the following additional site assessment work:
- An assessment of contaminants on, in or under the RSC property must be conducted, and certifications made about the contaminants as of the certification date. Both a Phase One and Phase Two ESA would be required.
- The Phase One ESA must include an investigation of existing and permitted land uses within the vicinity of the property where the proposed use of the RSC property is not a “sensitive property use” (i.e., it is an Industrial, Commercial, or Community land use), as prescribed in the Regulation. “Vicinity” is defined to include any property that is, in whole or in part, within a fixed area of 60 metres from the RSC property.
- If contaminants are present at the RSC property in concentrations greater than the applicable site condition standard for the off-site rule, ground water monitoring wells would be required within 3 metres of all down gradient property boundaries. Ground water wells would be sampled for at least four consecutive quarters. Concentrations of all contaminants must be below the applicable site condition standards for the off-site rule for four consecutive quarters.
- The applicable site condition standard for the off-site rule is not necessarily the standard for submitting the RSC for filing, and is determined as follows:
- If the RSC property is one for which Table 1 (Background) standards apply, these are the standards to apply for the off-site rules, i.e., if a contaminant moves off the RSC property after the certification date at a concentration higher than the Table 1 standards, immunity from certain orders is lost.
- If the RSC property’s intended use is a “sensitive property use” (agricultural or other, residential, institutional, parkland) then the off-site standard is the same as the standard for the RSC property (Section 33.7).
- If the RSC property’s intended use is something other than a sensitive property use, and a sensitive property use exists or is permitted within the vicinity as of the certification date, the off-site standard is full depth generic residential; otherwise the standard is the same as the one used for submitting the RSC.
- In all cases, the assessment of contaminants mentioned above would still have to be done.
3. A Streamlined Risk Assessment Approach
[P.36 (S.51-54); P.93; P.115 (Table 5)]
The ministry has built upon the existing limited scope - modified generic risk assessment process [Schedule C] to better enable the application of this risk assessment approach at brownfield sites. A modified generic risk assessment can be utilized by proponents as an alternative to meeting the ministry site condition standards (generic standards). Site condition standards are developed generically so they can be applied at the majority of sites in Ontario.
The ministry is proposing to provide proponents with a ministry approved model, via a software package and/or a web based tool, to allow for easy modification of the ministry’s generic site condition standards for use in a RSC. The ministry-approved model would enable a Qualified Person for Risk Assessment (QPRA) to modify generic assumptions, and remove generic exposure pathways to reflect property-specific conditions. The model would yield property specific standards while ensuring the same level of protection as generic standards.
Proposed Permitted Modifications
Modification of any assumptions must satisfy the requirements laid out in Table 5 “Phase Two Environmental Site Assessment Requirements for Modified Generic Risk Assessments” and must be certified by a QPESA. The site characterization requirements are intended to ensure any changes from the default parameters are appropriate and representative of the property. These site characterization requirements would need to be documented and submitted as an appendix to a modified generic risk assessment submission. The assumptions proposed to be available for user modification include:
- Soil type
- Soil dry bulk density
- Fraction of organic carbon (soil and aquifer)
- Distance from risk assessment property boundary to surface water body
- Minimum depth below grade to the highest annual water table
- Aquifer horizontal hydraulic conductivity
- Aquifer horizontal hydraulic gradient
- Aquifer material dry bulk density
The generic site condition standard models assume the presence of several exposure pathways (e.g. dermal exposure, inhalation of dust, ground water moving to surface water) at a property. The proposed regulatory amendments would allow the removal of exposure pathways from the models where they are deemed to be incomplete at a property due to naturally occurring conditions. Where removed, the QPRA would be required to demonstrate in the risk assessment report that the exposure pathway was in fact incomplete due to naturally occurring conditions.
Guidance materials will be developed for use with the modified generic model to assist users in satisfying ministry requirements. It is anticipated that many of these requirements will be largely satisfied by work already completed in the Phase Two ESA CSM.
Proposed Review Process and Certificates of Property Use (CPU)
The proposed regulatory amendments would enable the use of simple risk management measures to allow for the elimination or blocking of exposure pathways. This would increase the applicability of the modified generic risk assessment approach.
The proposed amendments would permit the capping of a property with clean fill and/or asphalt/concrete with an appropriate inspection and maintenance program to remove specific exposure pathways (e.g. direct human contact and ecological exposures).
It is also proposed that an alternative to capping be offered (i.e. leaving soil with elevated concentrations of contaminants on the property which would still support some ecological diversity as opposed to a cement or asphalt cap which leaves no habitat for ecological species). This alternative may result in the property supporting a reduced ecological diversity due to the higher soil contaminant concentrations remaining on the property. The success of this approach is dependant upon what soil concentrations would be permitted to remain on the property and the ability of that soil to support plant species as well as mammals and birds. To address this concern, it is proposed that soil concentrations would not be permitted to exceed an acceptable upper threshold ceiling value.
Complementary changes to O. Reg. 73/94 and O. Reg. 681/94 are also proposed in order to expedite approvals of modified generic risk assessments with risk management measures designed and published by the ministry for use with modified generic risk assessment. These changes would mean that CPUs that incorporate such risk management measures would not to be posted on the Environmental Bill of Rights Registry. (It should be noted that these risk management measures would not be unique to any one property or risk assessment, but instead could be applied generically and would be available for review at any time.)
The modified generic risk assessment would need to meet the minimum requirements of Schedule C, Table 1.
A modified generic risk assessment approach would not be permitted in certain circumstances. These circumstances are listed in Schedule C of the proposed amending regulation.
4. Strengthened Soil and Ground Water Site Condition Standards
[P.21 (S.15-16); Standards Tables posted as attachment]
On March 23, 2007, the ministry posted proposed updated soil and ground water standards on the EBR Registry for public comment. In response to comments received, the ministry modified the methodology and associated rationale document. These modifications resulted in changes to the standards that were posted in March 2007.
The revised proposed standards and rationale document are included in this posting. In addition to the tables of revised proposed standards, a second table is also available, which contains a comparison between the existing (March 9, 2004) standards and the proposed standards.
Many of the changes that were made in response to the March 2007 posting are highly technical. The following are brief summaries of some of the modifications that have been made:
- Analytical method detection limits (MDLs) were reviewed and, in conjunction with a technical advisory group with members from the ministry as well as private analytical labs, were revised to be more appropriate for the purposes of the regulation. MDLs are used as minimum values for standards.
- A review of the model input parameters was completed and parameter inputs were adjusted to address over conservatism where appropriate.
- Toxicity reference values (TRV’s) for the protection of human health, aquatic receptors, and terrestrial mammals and birds were reviewed for all parameters and up-dated wherever necessary. The process for selection of TRV’s is described in the rationale document.
- Inappropriate or incorrect numbers or algorithms in the models or spreadsheets were corrected.
- The model that calculates soil numbers protective of hawks was adjusted to incorporate soil ingestion.
- The shrew was removed as a receptor at industrial/commercial sites.
- Some physical/chemical constants were updated.
- Additional factors were added to some subsurface models to account for differences between observed concentrations and modelled concentrations. These account for the introduction of some biodegradation in soil as well as for some inaccuracies in the partitioning equations.
- Wherever possible, alternatives to "N/V" (no value) were used in the tables of standards in order to avoid the requirement to conduct a risk assessment.
- The model that is used to calculate soil numbers that are protective of drinking water was changed to better represent what is known to occur in drinking water wells.
- Calculation of the point at which free product forms, which is used as a maximum value for standards, was adjusted to account for known problems with large insoluble molecules. Alterations to the partitioning equations to account for recently observed inaccuracies were made in this regard as well.
- Background concentrations for ground water were re-calculated using new data from the MOE Provincial Ground water Monitoring Information System database.
- The addition of four new standards tables and the elimination of one table. These new tables will provide specific standards for shallow soil properties and properties within 30 m of a water body where the previously applicable table for these types of properties was Table 1 (Background). There are now 2 new tables (Table 6 - potable and Table 7 - non-potable) that will be applicable to shallow soil properties and 2 new tables (Table 8 - potable and Table 9 - non-potable) that will be applicable to properties within 30m of a water body. The previous Table 6 (Extract and Ground Water standards) was removed.
Additional technical detail of the revised methodology used to develop the proposed soil and ground water standards is included in the Rationale Document attached to this posting.
5. Complementary Technical Regulatory Amendments
- Proposed new sampling and information requirements for replacement soil brought to the site:
- Sampling and other requirements are proposed to demonstrate that soil has been brought to the site to be used for replacement fill and grading, as part of remedial actions taken to reduce concentrations of contaminants at Phase Two properties, meet the required site condition standards [P.89 (Schedule E; S.40-42) of amending regulation].
- Proposed new limited scope risk assessment option for owners of property within a multi-property assessment report:
- Would allow a property owner to make use of a multi-property community contaminated area report prepared for another property owner and in response to a ministry order or draft order [P.39 (S.55) of amending regulation].
- Proposed reclassification of indoor recreational facilities from Community Use to Parkland Use:
- This is specific to assembly occupancies of the arena type which includes indoor ice rinks and swimming pools [P.3 (S.1(8), 1(9), 1(12) of amending regulation].
- Proposed reclassification of non-commercial fuelling:
- On-site fuelling (temporary or permanent) facilities used for storage, maintenance, fuelling or repair of equipment, vehicles or material used to maintain transportation systems would be classified as industrial and so have the same mandatory level of investigation relating to the historic operations as the commercial gasoline storage and dispensing outlet [P.3 (S.1(11)) of amending regulation].
- Proposed clarification of site condition standards for Environmentally Sensitive Areas [P.22 (S.17) of amending regulation]:
- “A shallow soil property” and “the property includes or is adjacent to a water body and that is within 30 metres of a water body” no longer have to meet Background standards (Table 1) and are given their own Tables, and addressed further under the Strengthened Standards section of this posting.
- The sensitive classification based on a property that includes land that is within an area of natural significance or includes or is adjacent to such an area has been changed so that Background standards will apply to a property that is located within 60 metres of an area of natural significance or part of such an area.
Meeting petroleum hydrocarbon standards in ground water:
- The QP must determine that there is no indication of “objectionable petroleum hydrocarbon odour and taste”[P.27 (S.24)].
Increasing the range for potable standards:
- Use of non-potable standards on the RSC property would be precluded if the RSC property or any other properties, within 250 metres of the boundaries of the property are supplied by a municipal drinking water system as defined in the Safe Drinking Water Act and there are no wells installed for the extraction of ground water. The current distance is 100 metres [P.21 (S.14(2)) of amending regulation].
6. Transition provisions
[P.117 (S.58) of amending regulation]
It is proposed that, if approved, the regulatory amendments would come into effect one year after the amending regulation is filed.
Since certain sections of the Ontario Water Resources Act (OWRA) and the Environmental Protection Act (EPA) must come into force before some of the regulatory amendments, the amending regulation provides that such regulatory amendments come into force either one year after the amending regulation is filed or, if it is later, on the date when the last of the necessary sections of the OWRA and the EPA come into force.